Bentley Gilbert v. Brundage Bone Concrete Pumping, Inc.

The briefs submitted by the parties, as well as the award by the administrative law judge, reflect that, after the hearing, employee submitted a proposed award that recited $\ 649.32 as the weekly compensation rate for permanent total disability benefits. Noting the discrepancy between this rate and the stipulation of the parties, the administrative law judge agreed to reopen the record and invited the parties to submit a substitute stipulation regarding the compensation rate on or before January 11, 2012. The parties failed to do so.

In a communication submitted January 13, 2012, employee asked the administrative law judge to take administrative notice of the Report of Injury from the legal file of the Division of Workers' Compensation (Division), or alternatively mark it as an exhibit, and accept it as evidence that employee's average weekly wage was $\ 771.00. In her award, the administrative law judge denied employee's request. The administrative law judge noted that, even if she were to accept the Report of Injury as evidence that employee's average weekly wage was $\ 771.00, this wage would not entitle employee to a weekly compensation rate of $\ 649.32 for permanent total disability benefits, as alleged in the proposed award. The administrative law judge ultimately concluded that, given the lack of any credible evidence on the issue, she would accept the parties' original stipulation that the weekly compensation rate for permanent total disability benefits is $\ 340.12. See Award, page 3, n.1.

The Division's legal file contains docket entries indicating that on February 7, 2012, employee filed a Motion to Correct the Award, and that the administrative law judge denied the Motion the same day.

In his Application for Review, employee asks us to take notice of a purported Report of Injury filed by employer, and amend the award to reflect a rate of compensation consistent with an average weekly wage of $\$ 771.00,{ }^{1}$ or alternatively reopen the record to take additional evidence from the parties on the issue of the appropriate weekly compensation rate for permanent total disability benefits. The Second Injury Fund objects to both of these requests.

To the extent employee is asking that we consider evidence that was not offered and received into evidence at the hearing, we must deny that request because employee has failed to satisfy the requirements of 8 CSR 20-3.030(2), our rule pertaining to the submission of additional evidence. In pertinent part, the rule states as follows:

After an application for review has been filed with the commission, any interested party may file a motion to submit additional evidence to the commission. The hearing of additional evidence by the commission shall not be granted except upon the ground of newly discovered evidence which with reasonable diligence could not have been produced at the hearing before the administrative law judge. The motion to submit additional evidence shall set out specifically and in detail--

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[^0]: ${ }^{1}$ In his brief, employee advances two different "correct" weekly compensation rates for permanent total disability benefits: $\ 540.03 (on page 1) and $\ 514.03 (on page 2).

1. The nature and substance of the newly discovered evidence;

...

1. Full and accurate statement of the reason the testimony or exhibits reasonably could not have been discovered or produced at the hearing before the administrative law judge; ...

As we have recounted, the hearing in this matter took place on December 12, 2011. Employee fails to identify any newly discovered evidence pertinent to the question of compensation rate that, with the exercise of reasonable diligence, could not have been produced at the hearing. Employee identifies a purported copy of a Report of Injury filed by employer, attached as Exhibit C to his Application for Review, as evidence of his average weekly wage. But employee does not identify the date that this document was discovered. ${ }^{2}$ Nor has employee provided any explanation of the reason why this Report of Injury could not have been marked and offered at the hearing. Accordingly, we deny employee's request to submit additional evidence.

Employee alternatively requests that we take notice of the Report of Injury and amend the award to modify the weekly rate of compensation for permanent total disability benefits. Incidentally, we note that, for unknown reasons, there is no Report of Injury contained within the legal file that was forwarded to us by the Division in connection with this case. But even if there were, we believe we would be required to deny employee's request. There is some authority suggesting that a Report of Injury, not admitted into evidence but nevertheless contained within the Division's legal file, may, in certain circumstances, be considered as evidence as to the substantive issues in a workers' compensation proceeding, e.g., Sublett v. Columbia, 652 S.W.2d 189, 193 (Mo. App. 1983), but employee has failed to provide us with authority demonstrating that we would be permitted to rely upon such evidence to contravene a stipulation by the parties. Meanwhile, there is ample authority that parties' stipulations at a hearing before an administrative law judge are controlling and conclusive. Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001).

Employee cites International Dehydrated Foods, Inc. v. Boatright Trucking, Inc., 824 S.W.2d 517, 520 (Mo. App. 1992) for the proposition that we should interpret the stipulation regarding compensation rate in view of the result the parties were trying to accomplish. We gather that employee is now alleging that the parties did not intend to stipulate a compensation rate of $\ 340.12 at the hearing and that we can give effect to the parties' actual intent by modifying the compensation rate, notwithstanding the Second Injury Fund's objections.

The problem with employee's argument is that employee advances no evidence of a mistake. After a careful review of the transcript, we find no indication that the parties made any mistake in stipulating that the weekly rate of compensation for permanent total disability benefits is $\ 340.12. If there were a mistake, it would seem the parties

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[^0]: ${ }^{2}$ We are unable even to determine when the exhibit was allegedly created, as it bears no readily legible date, and employee does not provide any such information in his brief or Application for Review.